Il 2° Board of Appeal EUIPO 07.02.2024m, Case R 2087/2023-2, Storch-Ciret Holding GmbH, decide sull’appello contro la decisione che aveva rigetgtat la domadna di retistarizone per il seguente segno
Conferma il 1 grado amministrativo per cui è insufficientemente preciso violando gli artt. 4 e 7.1.a):
24 On that basis, it must be found that the sign applied for does not meet the precision requirement specified in Article 3(3)(f) (ii) EUTMIR, which is also to be used when interpreting Article 4(b) EUTMR.
25 The rectangles reproduced in the representation mentioned are already visually reminiscent of a mere coloured pattern. Above all, however, it is evident from the nature of the applicant’s request, which is directed at a colour mark, that the representation in rectangles can only have a pattern. It cannot constitute a restriction of the colour shades to the shown sequence of rectangles. Such a view would be inconsistent with claiming as a colour mark (27/03/2019, C-578/17, Hartwall, EU:C:2019:261, § 40 et. seq.). If only a horizontal row of coloured rectangles with white intermediate areas were claimed, the trade mark would be a purely figurative mark which, as emphasised by the applicant, is precisely not claimed (cf. in this respect the first decision of the Office on the application
of 8 March 2021, 3 et seq.).
26 The distribution by volume of the colours claimed, which requires a sufficiently clear systematic arrangement (cf. denied in respect of ‘approximately 50 % to 50 %’ in 30/11/2017, T-102/15 ure T-101/15, BLUE AND SILVER, EU:T:2017:852, § 58 et seq.), is unclear in the present case. As stated, the reproduction of the shades in rectangles appears to be a simple representation of colour patterns. It may be that the applicant thereby wishes to express an identical distribution of these shades of colour.
However, there is no objective evidence of this, which means that there is ultimately a speculation. In addition, the quantitative proportion of the colour ‘white’ is also open to doubts. In the specific representation, it indicates a narrow distance between the individual shades of colour in the rectangles. However, as stated (para. 25), the application for protection is not restricted to a reproduction of the shades in rectangles. It is unclear how the proportion in other designs is supposed to be.
27 The representation applied for also leaves open the question of which systematic arrangement of the shades is otherwise claimed. The information provided by the applicant, if the entry as rectangles is not understood as conclusive, allows a large number of different combinations of colours to be associated (30/11/2017, T-102/15 — T-101/15, BLUE AND SILVER, EU:T:2017:852, § 58 et seq.; see also the colour mark ……….., 14/06/2012, T-293/10, seven squares of different colours, EU:T:2012:302, § 56 et seq.) comparable with the colour mark applied for. It is not even clear whether each of the colours has the same shape and be designed in parallel.
28 As a result, too many ambiguities remain in the present case, which cannot be to the detriment of the general public. In its submissions, too, the applicant itself only withdrew itself with the general assertion that what can be seen here was claimed. However, this is precisely unclear if no purely figurative design is claimed.
29 The applicant could have easily encountered these objections, for example by making use of the possibility of submitting a description in the field of colour combination marks by way of exception. It is correct that a description pursuant to Article 3(3)(f) (ii) EUTMIR is not formally mandatory. However, it remains the responsibility of the applicant to satisfy the precision requirement under Article 4 EUTMR or the requirement of a systematic arrangement in which the colours concerned are combined in a predetermined and uniform manner pursuant to Article 3(3)(f) (ii) EUTMIR. That did not happen in this case.
30 The refusal of the application pursuant to Article 7(1)(a) in conjunction with Article 4 EUTMR was therefore ultimately correct.
31 The examiner expressly refrained from refusing registration under Article 7(1)(b) EUTMR. That is logical, because such a decision requires a clear subject of the application, which cannot be assumed here. Nor does the Board currently see any basis for such a decision.
32 The applicant’s appeal therefore had to be dism